"Yesterday the Supreme Court did something that it didn’t get to do in two other recent cases involving the Fair Housing Act: it heard oral arguments. As I noted in my preview of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the previous two cases had settled before the oral argument. The reason? Civil rights groups were worried that the conservative Justices on the Roberts Court would rule that the Fair Housing Act does not allow lawsuits based on “disparate impact” – that is, an allegation that a law or policy has a discriminatory effect, even though the discrimination was not on purpose.

The ability to bring such claims is important, they believe, because these days lawmakers and landlords rarely tell people that they intend to discriminate; discrimination is much more subtle, and it’s easier to prove that an action has a discriminatory effect. Many businesses, landlords, and lawmakers want the Court to rule that disparate-impact claims are not allowed under the FHA for much the same reason: why should we face lawsuits, they ask, if we have good intentions and didn’t mean to discriminate but our actions just so happen to disproportionately affect minorities?

Going into yesterday’s oral argument, we would have expected a close case. After all, the nine Justices on the Roberts Court often divide five to four in high-profile cases like these.

What most people would not have anticipated, however, was that the case could turn out to be a real nail-biter, with Justice Antonin Scalia suggesting at times (but not at others) that he might be inclined to vote to allow disparate-impact claims. Let’s talk about the argument in Plain English.,,,